HAROLD W. AIKEN, Appellant/,
LENA PROTIS, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.
Messrs. Lewkowitz & Wein, for Appellant.
Mr. W. L. Barnum, and Mr. R. H. Brumback, for Appellee.
[59 Ariz. 102] LOCKWOOD, C.J.
Harold W. Aiken, plaintiff, brought suit against Lena Protis, defendant, on three causes of action. The first was for a balance alleged to be due on a conditional sales contract made between defendant and Bakery Service Company, a corporation, called the company, and by it assigned to plaintiff. The second was upon an open book account, and the third for goods sold and delivered. Presumably what plaintiff endeavored to do was to state the same transaction in three ways, for the amount alleged to be due under each cause of action was identical to the cent.
Defendant answered, and as to the first cause of action denied entering into any valid contract whatever with the company, and denied the assignment or any indebtedness on the contract. Answering the second and third causes of action, she denied any indebtedness on book accounts of for goods sold or delivered, and set up as a further defense that she and her deceased husband, Joe Protis, had, in 1935, entered into a conditional sales contract
with plaintiff and the company, which had been fully paid and satisfied.
Defendant then cross complained and set up an action of fraud. The facts alleged were, in substance, as follows: That in June, 1935, she and her deceased husband had entered into a conditional sales contract with plaintiff and the company for the purchase of certain bakery machinery at an agreed price, which had been fully paid and satisfied by 1937, at which time her husband died. A few days later plaintiff falsely and fraudulently represented to defendant there was still due on said contract the sum of $1,800, and by this statement and threats of repossession of the property induced plaintiff to sign a contract [59 Ariz. 103] wherein she agreed to pay said sum herself. Thereafter she paid to plaintiff a considerable sum of money under her contract, notwithstanding which he took the bakery equipment in question and sold it to another party. She alleged that the payments made, when none were due, and the value of the property taken amounted to $2,592, and prayed judgment for that amount.
The case came on for trial before a jury, and after considerable evidence had been put in by plaintiff, he abandoned his second and third causes of action, and proceeded on the first. It shortly appeared from plaintiff's testimony that while the contract declared upon on its face was made with the company, it had never been assigned to plaintiff. He endeavored to explain this by claiming that the original contract had been made directly with him, but by inadvertence he had placed the name of the company, instead of his own, therein, stating that the connection between himself and the company was so intimate that he had forgotten this fact until it was brought to his attention in court.
The court promptly stated to counsel for plaintiff that under such testimony no recovery could be made upon the complaint as it stood; that it might be possible in some other action he could recover, but that he certainly could not in the instant one. Thereafter counsel for plaintiff asked leave to amend the complaint so as to change the action from one on an assigned contract to one on a direct contract with plaintiff. Objection was made by counsel for defendant, in the following language:
"Yes, your Honor, we do object to the amendment, and I will tell you the reason why. That paragraph is the basis of part of my answer and I allege fraud and they are trying to get out from under the exact thing that I allege. Therefore, they are asking the court to make a new contract for them and we have [59 Ariz. 104] drawn our answer and based our answer upon their allegations."
and the court, in answer to the contention of plaintiff's counsel that no injustice would be done by permitting the amendment, said:
"No, the court has not the power to permit you to amend and then hold them in court and proceed with the trial unless the court gives them an opportunity to answer and defend against this complaint because it is an entirely different situation. There is such a thing as a trial amendment, but it ...